Revisions filed under Sec.397 r/w Sec.401 Cr.P.C against the judgment dated 6.2.2008 in R.C.No.34 of 2005 and Appeal No.289 of 2003 passed by the learned Additional District & Sessions Judge (Fast Track Court-I), Chennai confirming the order passed by the learned II Metropolitan Magistrate, Egmore in C.C.No. 10403 of 1995.
Petition filed under Sec.482 Cr.P.C against the judgment of the learned Additional District and Sessions Judge (Fast Track Court-I), Chennai in R.C.No.34 of 2005 confirming the order passed by the learned II Metropolitan Magistrate, Egmore in C.C.No.10403 of 1995.
COMMON ORDER
G.M. AKBAR ALI, J.
1. Criminal Original Petition No.8025 of 2008 and Crl.R.C.Nos.8 and 9 of 2009 came up for hearing before a learned Single Judge of this Court. Criminal Revisions were filed at the instance of the accused in CC No.10403 of 1995 and Crl.O.P. was filed at the instance of the private parties.
2. During the course of hearing, a question arose before the learned Single Judge as to whether the Court of Sessions has got power to entertain a revision for enhancement of sentence. On behalf of the revision petitioners/accused, it was argued that a revision before the Court of Sessions for enhancement of sentence at the instance of a third party was not maintainable. However, the petitioners in Crl.O.P.No.8025 of 2008, who were the witnesses/third parties in the criminal case, had submitted that such revision for enhancement before the Court of Sessions was maintainable and relied on a decision reported in 2002 (2) LW Crl 549 (Janani Advertising Counsel rep by its Proprietor R. Ramanukam vs Benet Colmman and Co Ltd rep by its Assistant Manager C.P.Raghavan) (hereinafter referred to as Janani Advertising Case).
3. After elaborate consideration, the learned Single Judge respectfully differed with the view taken in the Janani Advertising case, which is followed in the case of R.S. Shankar vs B. Kala reported in 2010 (1) MWN (Cr.) DCC 11 and directed the Registry to refer the following question before the Hon'ble The Chief Justice for consideration in order to refer the same to a Division Bench to answer. The question to be answered is as follows:
Whether the Court of Sessions have got power to entertain a revision for enhancement of sentence
His Lordship The Hon'ble The Chief Justice has referred the matter to this Division Bench.
4. Since important question of law is involved in this, this Court requested Mr.B. Sriramulu, the learned Senior Counsel and former State Public Prosecutor to assist the Court as Amicus Curie.
5. Mr.B. Kumar, the learned Senior Counsel appeared for the revision petitioners and Mr.K.M. Ramesh, learned counsel appeared for the petitioners in Crl.O.P.No.8025 of 2008 and Mr.V.M.R. Rajendran, learned Additional Public Prosecutor represented the State.
6. Before answering the question raised, it is relevant to point out the circumstances under which the revision as well as the criminal originall petition came to be filed by the parties.
7. The revision petitioners are the Directors and Vice President of Addison Paints and Chemicals Limited, Sembium, Chennai. They are the employers. The petitioners in the Crl.O.P.No.8025 of 2008 were the employees.
8. A private complaint was filed by the Labour Inspector on the ground that the employers have not complied with the Settlement Award passed in ID No.83 of 84 dated 31.12.1992, wherein the employers were directed to pay D.A and H.R.A for the employees for the years 1985 and 1990. The private complaint was filed under Sec.29 of the Industrial Disputes Act before the II Metropolitan Magistrate, Egmore, Chennai. It was taken on file in CC No.10403 of 1995.
9. After a trial the criminal court found that the employers were guilty of not implementing the award and therefore convicted them under Sec.29 of the Industrial Disputes Act. A fine of Rs.1000/-was imposed to the four accused on the side of the employers. The petitioners in Crl.O.P.No.8025 of 2008 were examined as witnesses Nos.2 and 4. The 1st and 3rd accused preferred an appeal in CA No.289 of 2003 before the Court of Sessions, Chennai. At the same time, the complainants/employees filed a criminal revision before this Court for enhancement of sentence.
10. Admittedly, when the said criminal revision was taken up in Crl.R.C.No.1442 of 2003, the learned counsel for the respondents/employers submitted that against the conviction, the respondents/employers have already preferred an appeal which was pending before the learned II Additional District Judge, Chennai. Consequently the Court observed as follows:
2. Counsel for the respondent further submits that if the appeal is transferred to this Court, to be heard along with this revision, the accused will lose an opportunity of filing a revision against the order in appeal. Learned counsel for the petitioner concedes and made an endorsement in the bundle that this revision can be heard along with the appeal filed by the accused by the same Judge.
3. In the above circumstances, this revision is transferred to the file of the II Additional District Judge, Chennai, who shall hear the same along with C.A.No.289 of 2003 and dispose of both the cases in accordance with law.
11. Therefore, the revision for enhancement filed by the complainants/employees was transferred to the learned Additional District Judge, Chennai. It was numbered as R.C.No.34 of 2005. Both Criminal Appeal No.289 of 2003 and Crl. R.C.34 of 2005 were heard by the learned Additional District and Sessions Judge (Fast Track Court, Chennai) and two separate orders were passed.
12. The appeal was dismissed and the revision was allowed and thereby the appellants therein and the other accused were imposed an enhanced fine of a sum of Rs.5000/-each with default sentence. This order was passed on 6.02.2008.
13. The appellants/accused have preferred Crl.R.C.Nos.8 and 9 of 2009 against the conviction as well as the enhancement of sentence. The complainants/employees have invoked the jurisdiction under Sec.482 Cr.P.C and have filed Crl.O.P.No.8025 of 2008 for further enhancement of sentence and for an order that the fine be continued as long as the offence continues for non implementation of Settlement Award.
14. Both criminal revisions as well as original petition came up before the learned Single Judge and the above question was raised as to whether the Court of Sessions have got power to entertain a revision for enhancement of sentence.
15. For convenience sake, the revision petitioners are referred as revision petitioners and the petitioners in Crl.O.P No.8025 of 2008 are referred as complainants.
16. At the outset, Mr.K.M. Ramesh, the learned counsel for the complainants submitted that the complainants had initially preferred a revision only before this Court for enhancement of sentence. Only on the submission of the learned counsel for the revision petitioners that an appeal was pending before the Sessions, it was transferred to the Court of Sessions, as otherwise there will be two conflicting decisions. Therefore, now it is not open to the revision petitioners to challenge the order passed by the Court of Sessions in the revision petition on the ground that the Court of Sessions has no power to entertain a revision for enhancement of sentence.
17. As far as this contention is concerned, we are not attempting to give any findings and leave this question open for the learned Single Judge to decide. The question referred before this Division Bench is whether the Court of Sessions have got power to entertain a revision for enhancement of sentence as there are conflicting decisions. If this question is answered the above contention will be answered.
18. Mr.B. Kumar, the learned Senior Counsel for the revision petitioners submitted that the Court of Sessions has no power to entertain a revision for enhancement of sentence filed by a third party.
19. The learned Senior Counsel meticulously pointed out the provisions in the criminal procedure code and also relied on the following case laws:
1) 2010 Crl.L.J 2427 (Lalu Prasad Yadav and another vs State of Bihar and another)
2) 1983 L.W (Crl) 166 Krishnamoorthy and Elumalai InRe Order of reference.
3) 1995(1) L.W (Crl) 403 (The Assistant Collector of Customs (Prosecution, Preventive Department, Customs House, Madras vs Nandikara Kumaran)
4) 1976 Crl.L.J 1721(1) (Nadir Khan vs The State (Delhi Administration)
5) 1979 Crl.L.J 1437 (Chandrapal vs State and Ohters)
6)AIR 1990 SC 1188(Sahab Singh and others vs State of Haryana)
20. The main contention of the learned Senior Counsel is as follows:
a) Under Sec.377 of Cr.P.C the State Government alone can file an appeal in any case of conviction on a trial held by any court other than High Court, to the High Court against the sentence on the ground of inadequacy.
b) Under Sec.386 of Cr.P.C, if an appeal is filed under Sec.377 Cr.P.C the appellate Court may enhance or reduce the sentence.
c) Under Sec.399 of Cr.P.C a Sessions Judge is given a power of revision in the case of any proceedings, the record of which, has been called for by himself and exercise the power of revision which may be exercised by the High Court under sub section 1 of Sec.401 Cr.P.C.
d) Under Sec.401 Cr.P.C the High Court may exercise its power of revision in the case of any proceedings, the record of which has been called for by itself or which otherwise comes to its knowledge in its discretion exercise any of the power conferred on a Court of Appeal by Sec.386, 389, 390 and 391.
The phraseology which otherwise comes to its knowledge is deliberately omitted in sec.399.
e) There is no appellate power for the sessions court for enhancement and therefore power of revision is not available.
21. Therefore, according to the learned Senior Counsel, the Court of Sessions has no power to entertain the revision for enhancement of sentence.
22. On the other hand, the contention of Mr.K.M. Ramesh, the learned counsel for the complainants are as follows:
Under Sec.399 Cr.P.C the Sessions Judge may exercise any of the powers which may be exercised by the High Court under sub sec.1 of Sec.401 of the Code. One such power under sub sec.1 of sec.401 is a power conferred under Sec.386 of the Code under which the sentence may be enhanced or reduced. Therefore, the contention of the learned counsel for the complainants is that the Sessions court has got power to entertain a revision for enhancement of sentence.
23. The learned counsel reiterated the argument that the complainants had originally preferred a revision before this Court and only on the submission of the present revision petitioners the revision filed by them earlier was transferred to the Court of Sessions to be heard along with the criminal appeal as per the order passed in Crl.R.C.No.1442 of 2003 dated 29.3.2004. The learned counsel also pointed out that the party cannot approbate and reprobate and relied on a decision reported in AIR 1993 SC 352 (R.N. Gosain A vs Yashpal Dhir) for that preposition.
24. The learned counsel also pointed out that unless there is an express prohibition to entertain a revision the courts have power of revision and relied on a decision reported in 2011 (2) LW 491 SC (Rajendra Prasad Gupta vs Prakash Chandra Mishra and Others) for that preposition.
25. The learned counsel also pointed out that the complaint preferred under the Industrial Disputes Act is a private complaint and the complainant is entitled to prefer a revision for enhancement and relied on ILR 1987 KAR 3762 (S.N. Hada and Ors vs The Binny Ltd Staff Assocation) for that preposition.
26. The learned counsel also relied on A.R Antulay's case reported in AIR 1984 SC 718(1) (A.R. Antulay vs Ramdas Sriniwas Nayak and another) wherein the Apex Court has held that Court shall have all powers except those specifically excluded.
27. Mr.B. Sriramulu, the learned Senior Counsel and Amicus-Curie submits that the Sessions Court has no power to entertain a revision for enhancement of sentence. According to the Senior counsel, there is no provision available in the Code to file a revision for enhancement of sentence by a third party before the court of sessions.
28. According to the learned Senior counsel, the only revisional power given to the Sessions Court is powers under Sec.397 of the Code as per which a Sessions Judge may call for and examine the records of any proceedings from any inferior criminal court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and to the regularity of any proceeding of such inferior court.
29. The learned Amicus Curie pointed out that the exercise of power under section 397 of the Code cannot be used to enhance the sentence on the application of a third party.
30. The learned Amicus curie pointed out that under sec.399 of the Code the Sessions Judge can only call for the report by himself to exercise the power of revision and the legislature has purposely omitted the words or which otherwise comes to its knowledge as laid down under sub sec.1 of Sec.401 of the code, which is for the High Court to exercise such powers.
31. The learned Senior Counsel also submitted that there is no inherent power for the Sessions Court. Inherent powers have only been given to High Court and relied on a decision reported in AIR 1977 SC 2432 (Bindeshwari Prasad Singh vs Kali Singh), wherein the Apex Court has held
Code of Criminal Procedure does contain a provision for inherent power viz., Sec.561-A which however, confers these powers on the High Court and the High Court alone unlike Sec.151 of the Civil Procedure Code, the Subordinate Criminal Courts have no inherent powers .
32. The learned Amicus Curie also relied on a Full Bench judgmenr of Kerala High Court reported in AIR 1978 Kerala 131 (Kesavan Sivan Pillai vs Sreedharan Rajamohan and Others), wherein the Kerala High Court has held that
4. In the face of the bar provided by cl(3) of S.399, to import such a rule of salutary practice would be to render the option under cl.(1) of Sec.397 nugatory. We see that the bar under S.399(3) can operate only against a party who moved the Sessions Judge; so that, if the party succeeded before the Sessions Judge a right of further revision to the High Court could be availed of by the opposite party. But this, we think, is only an attenuated right, available only in a small percentage of cases. It is one thing to apply a rule of salutary practice requiring the party to resort to the lower forum before moving the higher one, so long as the two forums are available for resort. But when this is coupled, so to say, with a penalty as in S.399 (3) that the choice of the one will bar access to the other, still to confine the party to the lower forum will be, practically, to destroy the option . Heard and perused
33. We have carefully gone through the judgment of the learned Single Judge reported in 2002 (2) LW (crl) 549 (Janani Advertising Case). Indeed, the learned single Judge has analysed almost all the decisions available on the subject and has come to the conclusion that the Sessions Court has power to entertain a revision for enhancement of the sentence by a third party.
34. Differing with this view the learned Single Judge who has referred the matter to the Division Bench has also equally traced the history of the development of Criminal Procedure on the point of revision by Court of Sessions and High Court and has also referred to some of the decisions of Allahabad High Court and Delhi High Court and would hold that the High Court alone can exercise the power of revision for enhancement of sentence at the instance of a third party.
35. Before going into the correctness of the two decisions it is relevant to trace the history as it emerges with the order under reference. Under Sec.407 of Criminal Procedure 1861, there shall be no appeal from the judgment of acquittal passed in any criminal court. However, in the code of criminal procedure 1872, under Sec.280 the appellate court had been provided with the power of enhancement of sentences. When the new code of criminal procedure was introduced in the year 1882 the above said power given to the appellate court was again done away with. The Code of Criminal Procedure 1898, Sec.439 was introduced which provides for exclusive power to the High Court alone to enhance the sentence by exercising its revision power.
36. The Code of Criminal Procedure 1974 in the place of Sec.439, Sec.401 has been incorporated. Sec.377 which was introduced, empowered the High Court to entertain the appeal by the State for enhancement of sentence. Sec.378 provides for an appeal against acquittal before the High court. Sec. 399 and sec 401 deals with revision power of the court of sessions and High court. Sec.377 reads as follows:
377. Appeal by the State Government against sentence. (1) Save as otherwise provided in sub-section (2), the State Government may, in any case of conviction on a trial held by any Court other than a High Court, direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy.
(2) If such conviction is in a case in which the offence has been investigated by the Delhi Special Police Establishment, constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may 5[also] direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy.
(3) When an appeal has been filed against the sentence on the ground of its inadequacy, the High Court shall not enhance the sentence except after giving to the accused a reasonable opportunity of showing cause against such enhancement and while showing cause, the accused may plead for his acquittal or for the reduction of the sentence.
378. Appeal in case of acquittal. (1) Save as otherwise provided in sub-section (2) and subject to the provisions of sub-sections (3) and (5), the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court 4[or an order of acquittal passed by the Court of Session in revision].
(2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946) or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may also direct the Public Prosecutor to present an appeal, subject to the provisions of sub-section (3), to the High Court from the order of acquittal.
(3) No appeal under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High Court.
(4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.
(5) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal.
(6) If in any case, the application under sub-section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under sub-section (2).
Corresponding Law: S. 417 of Act V of 1898.
399. Sessions Judge's powers of revision. (1) In the case of any proceeding the record of which has been called for by himself, the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under sub-section (1) of Section 401.
(2) Where any proceeding by way of revision is commenced before a Sessions Judge under sub-section (1), the provisions of sub-sections (2), (3), (4) and (5) of Section 401 shall, so far as may be, apply to such proceeding and references in the said sub-sections to the High Court shall be construed as references to the Sessions Judge.
(3) Where any application for revision is made by or on behalf of any person before the Sessions Judge, the decision of the Sessions Judge thereon in relation to such person shall be final and no further proceeding by way of revision at the instance of such person shall be entertained by the High Court or any other Court.
Corresponding Law: Ss. 437 and 438(1) Act V of 1898.
401. High Court's powers of revision. (1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 386, 389, 390 and 391 or on a Court of Session by Section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by Section 392.
(2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.
(3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.
(4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.
(5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly.
Corresponding Law: S. 439 of Act V of 1898.
37. Sec.397 provides revision powers, both for the Sessions Court as well as the High Court.
38. Sec.397 of Cr.P.C reads as follows:
397. Calling for records to exercise powers of revision.
(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself' or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court, and may, when calling for such record, direct that the execution of' any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.
Explanation. All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction shall be deemed to be inferior to the Sessions Judge for the purposes of this subsection and of section 398.
(2) The powers of revision conferred by sub-section (I) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the of the of them
39. A bare reading of Sec.377 Cr.P.C would show that the High Court alone has power to enhance the sentence and that too in an appeal filed by the State. However, a question would arise as to whether a complainant either in a private complaint case or in a police case, on being aggrieved over the inadequacy of the sentence can approach the Sessions Court or High Court by invoking the revision jurisdiction.
40. In answering the above said question, the learned single Judge M.Karpagavinayagam J, in the Janani Advertising case has considered Secs.377, 386, 399, 401 Cr.P.C and has observed thus:
36. The reading of these Sections would reveal that the Sessions Court under Section 399(2) Cr.P.C could invoke the power of the High Court under sub-section (1) of Section 401 Cr.P.C
37. It is true that the word Sessions Court is not included in Section 377 Cr.P.C. But, Section 401 Cr.P.C would refer to the powers of the Court of Appeal under Section 386 Cr.P.C in which the reference about Section 377 Cr.P.C is made. The only difference between the powers of revision before the Sessions Court and the High Court, as could be seen from Sections 399 and 401 Cr.P.C is this.
38. Section 399 Cr.P.C would provide in the case of any proceeding, the record of which has been called for by himself the Sessions Judge may exercise..... In Section 401 Cr.P.C the Section begins with the words in the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may exercise .... . Thus, it is clear that the word otherwise comes to its knowledge is absent in Section 399 Cr.P.C.
39. But, the Sessions Court, when it calls for record by invoking the revisional jurisdiction under Section 399 Cr.P.C, would certainly invoke powers under Section 401(1) Cr.P.C for exercise of any of its powers on a Court of appeal by Section 386 Cr.P.C.,etc., subject to the restriction contained therein.
41. The learned Single Judge had also referred the revisional power under Sec.397 of the Code and has observed as follows:
41. The reading of this Section would show that the High Court as well as the Sessions Court may call for record of any proceeding of any inferior criminal Court situate within its jurisdiction for the purpose of satisfying itself as to the correctness, legality of propriety of any finding, sentence, etc. Thus, the Sessions Judge could examine the question in relation to the inadequacy of sentence in view of the powers conferred on him by sub section (1) of Section 397 Cr.P.C.
42. As noted above, under sub section (1) of Section 399 Cr.P.C the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under sub section (1) of section 401 Cr.P.C.
43. From this, it will follow that if the High Court could enhance the sentence, the Sessions Judge can also do it, as contemplated under Section 401(1) Cr.P.C. According to Clause ) of Section 386 of the Code, the Appellate Court can, in an appeal for enhancement of sentence, alter the nature or the extent of the sentence so as to enhance or reduce the same.
42. The learned Single Judge had also taken into note the Law Commission report and has observed,
68. Despite the said recommendation, the legislature conferred powers of revision to the Sessions Court not only under Section 397 Cr.P.C to call for the records to examine the correctness of sentence, but also would confer powers vested with the High Court under Section 401(1) Cr.P.C to the Sessions Court by virtue of Section 399 Cr.P.C.
69. These things would make it clear that the cases for enhancement of sentence at the instance of the private party which would have normally gone to the High Court in respect of sentences passed by the Courts subordinate to the Sessions Judge, would now go to the Sessions Court and thereby the object of relieving the congestion of work in the High Courts in part will be achieved to some extent. and the learned judge finally held,
71. As stated earlier, the powers of a Sessions Judge while dealing with a revision are the same as that of the High Court. When the High Court can enhance the sentence while dealing with the revision, the Sessions Judge can also do so.
43. On the other hand, our learned Brother, S.Nagamuthu J, who passed the order of reference has observed as follows:
6. Section 401 Cr.P.C deals only with the powers which can be exercised by the High Court while exercising its revisional power. While doing so, the High Court can exercise, inter-alia, the powers of appellate court under Sec.386 Cr.P.C. Now, a glance through section 386 would go to show that it speaks of 3 contingencies, viz.,
i) in respect of an appeal from an order of acquittal;
ii) in respect of an appeal from a conviction and
iii) in respect of an appeal for enhancement of sentence.
So far as the latter two kinds of powers are concerned, they can be exercised only by the High Court under Sections 378 and 377 of Cr.P.C.
44. The point of difference by S.Nagamuthu J, has been expressed in paragraph 12 of the order, which reads as follows:
In Janani Advertising Case cited supra, the learned Judge has held that in view of the provision contained in Section 399 of Cr.P.C, the Court of Sessions can exercise all the powers of the High Court as revisional court. I regret that I am unable to agree with the said view. As I have already stated, Section 386 of Cr.P.C contains three kinds of appellate powers viz.,(appeal against conviction (ii) appeal against acquittal; and (iii) appeal for enhancement of sentence. So far as the latter two kinds of powers are concerned, they can be exercised only by the High Court under Sections 378 and 377 of Cr.P.C. Therefore, while exercising the revisional power, the High Court alone can exercise the power under Sections 378 and 377 of Cr.P.C., But, in respect of the appeal against conviction, the appellate power is vested with the Court of Sessions also. So, while exercising its revisional power under Section 401 r/w 397 of Cr.P.C the Court of Sessions can exercise the appellate powers under Section 374 of Cr.P.C alone. Therefore, in respect of revisional power, obviously, there is difference between the High Court and the Court of Sessions. A survey of the Scheme of the Code may indicate that the legislature has thought it fit to confer power of enhancement of sentence only to the High Court that too at the instance of the State. Had it been the intention of the legislature to confer such power on the Court of Sessions also, the legislature would have even expressly conferred such power of appeal to enhance the sentence to the Court of Sessions also. Logically, it strikes one's mind that when the State itself can request for enhancement of sentence only to the High Court, it can never be said that the legislature would have thought of giving such power to the Court of Sessions to enhance the sentence at the instance of a third party .
The order of reference was passed on 29.03.2010.
45. Now let us consider the question raised before us. The above question was considered as early as 1977.
46. In 1977 Crl.L.J.1666(1) (Prabhudas Chhaganlal and another vs Babubhai Virabhai Miseria and another) a Division Bench of Gujarat High Court held that a Sessions Judge can entertain an application in revision for enhancement of sentence. The Division Bench has gone through Secs.377 to 401 and held as follows:
14. Thus, there is no escape from the conclusion that the Sessions Judge has power to enhance sentence in revision subject to the limitation set forth in sub-sec (4) of Section 401 viz., in a case where an appeal lies and no appeal is brought, proceeding by way of revision cannot be entertained at the instance of the party who could have appealed. In a way this sub-section would also provide an answer to the argument that in view of conferment of right of appeal against the sentence, interference with sentence in revision is excluded. The Legislature could have wholly excluded exercise of power of revision where an appeal lies. Instead, there was partial exclusion of revisional proceeding at the instance of the party who could have appealed.
15..........
16. .......
17. Our conclusion, therefore, is that a Sessions Judge can entertain an application in revision against sentence and enhance the sentence in revision in certain cases. It is clear that by making of this provision, the cases of enhancement of sentence at the instance of private party which would have normally gone to the High Court in respect of sentences passed by Magistrate subordinate to the Sessions Court, would now go to the Sessions Court, and thereby the object of relieving congestion of the work in High Courts in part will be achieved to some extent. We must, however, make it clear that interference in revision with an order of sentence or order of acquittal is subject to the limitation laid down by the Supreme Court and this power cannot be exercised as if the Sessions Judge is hearing an appeal. Thus in respect of enhancement of sentence in revision the enhancement can be made only if the Court is satisfied the the sentence imposed by the trial Court is unduly lenient, or that in passing the order of sentence, the trial court has manifestly failed to consider the relevant facts (Vide Alamgir vs State of Bihar AIR 1959 SC 436) (1959 Crl.L.J 527). Similarly, in Ram Narain vs State of U.P AIR 1971 SC 757; (1971 Crl.L.J 649) it was laid down that sentence can be enhanced if it was so manifestly inadequate as to have resulted in failure of justice .
47. However, a single Judge of Allahabad High Court reported in the case of Chandrapal vs State and others reported in 1979 Crl.L.J.1437 did not agree with the decision of the Division Bench of Gujarat High Court and observed as follows:
3. In the aforesaid decision of the Gujarat High Court the view taken was that the Sessions Judge has powers to enhance the sentence while exercising revisional jurisdiction. This decision is based mainly on the ground that under Section 402, Criminal P.C 1973 (Act 2 of 1974) the powers of the High Court are the same as those of a Court of Appeal conferred by Ss.386, 389, 390 and 391 or on a court of session under Sec.307, Criminal P.C and since the powers of the Court of Session are identical to the powers of the High Court under Sec.388, Criminal P.C and since the High Courts have powers to enhance the sentence under Section 376 read with Sec.377, Criminal P.C; the Sessions Judge would also be deemed to have been invested with similar powers.
4........ Reading both these sections together it is clear that appeals on the question of sentence on the ground of inadequacy and against passed by the original or appellate court lie only to the High Court. Appeals against convictions on the other hand lie to the sessions court. High Court and the Supreme Court depending upon the nature of each case. It is thus clear that when S.386 Criminal P.C refers to the powers of the High Court as well as of the Court of Session without specifically mentioning those courts in that section. Nevertheless, if the powers of the appellate court are to be exercised with respect to matters which arise out of enhancement of sentence or acquittal then by virtue of Ss 377 and 378, Criminal P.C it would be the High Court alone which would be empowered to exercise this jurisdiction.
48. A Division Bench of Allahabad High court reported in 1980 ALL.L.J 217 Dharshan Lal Vs. Indra Kumar Mehta was of the view,
4. According to Section 397(1) a Sessions Judge can call for and examine the record of any proceedings of any inferior criminal Court situate within his jurisdiction for satisfying himself as to the correctness, legality or propriety of any finding, sentence or order. The grievance of the applicant in the revision filed by him before the trial Court was wholly inadequate. The Sessions Judge could, therefore, examine that question in view of the powers conferred on him by Sub-section (1) of Section 397 of the Code of Criminal Procedure. Further, under Sub-section (1) of Section 399 of Sessions Judge, while dealing with a revision, can exercise all or any of the powers which may be exercised by the High Court under Sub-section (1) of Section 401. By this it would follow that if the High Court, while dealing with a revision can enhance the sentence, the Sessions Judge can also do it. According to Sub-section (1) of Section 401 the High Court, while dealing with a revision, can exercise any of the powers conferred on an appellate Court, by Section 386 of the Code. According to Clause (c) of Section 386 of the Code, the appellate Court can, in an appeal for enhancement of sentence, alter the nature or the extent of the sentence so as to enhance or reduce the same. In view of this provision contained in Section 386, Cr. P.C. it should be held that the High Court, while dealing with a revision, can enhance the sentence. As already stated earlier the powers of a Sessions Judge, while dealing with a revision, are the same as that of the High Court. Since the High Court can enhance the sentence while dealing with the revision, the Sessions Judge can also do so.
49. It is relevant to refer to the decisions of M. A. Sathar Sayeed, J., in Ramnad District Co-operative Supply and Marketing Society v. V. Chandran, (1982 Mad LW (Cri) 20). In the case cited, the District Co-operative Supply and Marketing Society, Ramanathapuram, which was the complainant, filed a revision before the Sessions Judge, Madurai, praying for enhancement of sentence to the accused. The Sessions Judge refused to entertain the revision stating that only the High Court has jurisdiction to enhance the sentence. The Society then filed Cri.R.C. Nos. 684 and 685 of 1977. M. A. Sathar Sayeed, J., held that since the State has no part to play in the proceedings, no appeal would lie under Section 377, Cr.P.C., for enhancement of the sentence and as such, the only remedy open to the complainant was to move the Sessions Court, and not the High Court, for enhancement of the sentence.
50. Singaravelu, J., was of the view that in the light of the express terms contained in Section 377, Cr.P.C., the right to file an appeal has been conferred exclusively on the State Government or the Central Government as the case may be, and as such, it is not open to a complainant to file a revision against inadequacy of sentence and seek a relief which has been denied to him under Section 377, Cr.P.C. He has further held that the Legislature has deliberately restricted the right of appeal against inadequacy of the sentence only to the State Government and the Central Government since questions relating to adequacy of sentence are matters of public concern and, secondly, the Courts are not to be used as forums by private citizens for wreaking vengeance against their adversaries by clamouring for enhanced punishment. On the basis of such reasoning, the learned Judge has disagreed with the ruling of M. A. Sathar Sayeed, J., in Ramnad District Co-operative Supply and Marketing Society v. V. Chandran (1982 Mad LW (Cri) 20).
51. The matter was referred to the Division Bench of this Court and the Division Bench overruled the view of M. A. Sathar Sayeed, J., In 1983 L.W. (crl) 166 ( Krishnamoorthy and Elumalai, In re, and the Division Bench held,
27. It is in the light of this position, the extended powers of revision now made available to Sessions Judges under S. 399 have to be determined. Though, in sub-section (1) of S. 399 it is stated that "the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under sub-section (1) of S. 401", the Sessions Judge can exercise only such of those powers which can be exercised by the High Court itself in exercise of its revisional powers. Since the High Court itself cannot entertain an appeal by anyone except the State Government or the Central Government for enhancement of sentence, it follows that the High Court, and more so the Sessions Judge, cannot entertain a revision for enhancement of sentence at the instance of a private party."
52. But this Judgment was referred to a Full Bench of this court specifically constituted for the purpose. In a decision reported in 1995 1 L.W. (Crl) 403 (The Assistant Collector of Customs Vs. Nandhikara Kumaran), the Full Bench observed as follows;
When a decision of the Division Bench of this court is contrary to the ruling of the Supreme court, the view of the Division Bench is not good law. As per Article 141 of the Constitution, the law declared by the Supreme court is binding on all the courts. In this matter, the decisions of the Supreme court are clearly to the effect that a revision petition for enhancement of sentence by a private party is possible, there is no controversy subsisting and the view has to be followed.
53. The Full Bench referred to two Supreme Court decisions; (i) Pratap Vs. State of U.P. ( 1973 S.C.C. (Crl) 496) and (ii) Bachan Singh and others Vs. State of Punjab( 1980 S.C.C. ( Crl) 174).
(i) The observation made in 1973 SCC (Crl.) 496 (supra) is as follows:
Under Section 439 of the Code of Criminal Procedure, the High Court has got ample powers to issue notice to show cause why his sentence should not be enhanced on the basis of a revision petition filed by a private party and the power of the High Court under this Section is one which the High Court can impose suo motu and all that a person filing a revision petition under that Section does is to draw the court's attention to an illegal, improper or incorrect finding, sentence or order of a subordinate court. The fact that the Government did not do so does not affect the powers of the High Court under that Section .
(ii) The observations made in 1980 SCC (Crl.) 174 ( Supra) is as follows
It has to be appreciated that in respect of the petition which was filed under Section 401 Cr.P.C for the exercise of the High Court's powers of revision, it was permissible for it to exercise the power of a Court of Appeal under Section 386 for enhancement of the sentence, and if that had been done, there is no justification for the argument that the enhancement was illegal.
54. As it could be seen, the Hon'ble Supreme Court has dealt only with the revisionary power the High court and did not deal with the power of the Sessions court. The Full Bench also did not deal with the power of the Sessions court but held that a revision petition for enhancement of sentence by a private party is possible . The reasoning of the Division Bench in Krishnamoorthy In re's case is that Since the High Court itself cannot entertain an appeal by anyone except the State Government or the Central Government for enhancement of sentence, it follows that the High Court, and more so the Sessions Judge, cannot entertain a revision for enhancement of sentence at the instance of a private party. This view was held as not correct as far as the High Court is concerned. The contention now raised is that the said power can be invoked through revisionary jurisdiction only by the High Court and not by the Sessions Court, as power has not been conferred to the Sessions Court.
55. Apart from the Division Benches of Gujarat High court and Allahabad High court, The Bombay High court in Mohammad Sabir v. The State of Maharashtra (1978 Cri LJ 825), Kerala High Court in T. Jayarajan vs P.R. Muhammed And Ors. (1999 CriLJ 1856), The Himachala Pradesh High court in Pran Nath Tikku vs Rajinder Maheshwari (2004 CriLJ 3772), The Karnataka High court in Patel Sidde Gowda Vs. K. Sidde Gowda and two others (1976 Crl. L J 371) (all by Single Judges) are of the view that the Sessions Court has power of revision for enhancement of sentence under section 399 (1) of the Code.
56. They are of the uniform view that under Sub section (1) of 399 a Sessions Judge, while dealing with a revision, can exercise all or any of the powers which may be exercised by the High court under sub section (1) of section 401. By this it would follow that, if the High court, while dealing with a revision can enhance the sentence the Sessions Judge can also do it.
57. According to sub section (1) of Section 401 of the Code, the High court, while dealing with a revision can exercise any of the powers conferred on appellate court by section 386 of the Code. According to clause (c) of Section 386 of the Code, the Appellate Court can in an appeal for enhancement of sentence, alter the nature or the extent of the sentence so as to enhance or reduce the same. In view of this provisions contained in section 386 of the Code, it should be held that the High court while dealing with a revision can enhance the sentence. As the powers of the Sessions judge, while dealing with a revision are the same as that of the High court, since the High court can enhance the sentence the Sessions judge can also do so. What has not been granted under section 377 of the Code, has been conferred under section 386 of the Code.
58. The difference of opinion is very clear. The contention of those against this view is that when there is no appellate power for enhancement there is no revision power. The powers of the Appellate Court under Sec.386 of the Code are i) appeal against conviction ii) appeal against acquittal and iii) appeal for enhancement of sentence. So far as the last two kinds of powers are concerned, they can be exercised only by the High Court under Sec.378 (appeal against acquittal) and sec.377 (appeal for enhancement of sentence) and not by a court of Sessions.
59. Meanwhile the Criminal Law Amendment 2005 came in to force and the Code was amended by Act 25 of 2005 which came in to force on 23.06.2006. Let us consider the position as it stands today after the amendment the Code by Act 25 of 2005 .
377. Appeal by the State Government against sentence
. (1) Save as otherwise provided in sub-section (2), the State Government may, in any case of conviction on a trial held by any Court other than a High Court, direct the Public Prosecutor to present 1[an appeal against the sentence on the ground of its inadequacy
(a) to the Court of Session, if the sentence is passed by the Magistrate; and
(b) to the High Court, if the sentence is passed by any other Court.]
(2) If such conviction is in a case in which the offence has been investigated by the Delhi Special Police Establishment, constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may 2[also] direct the Public Prosecutor to present 3[an appeal against the sentence on the ground of its inadequacy
(a) to the Court of Session, if the sentence is passed by the Magistrate; and
(b) to the High Court, if the sentence is passed by any other Court;].
(3) When an appeal has been filed against the sentence on the ground of its inadequacy, 4[the Court of Session or, as the case may be,] the High Court shall not enhance the sentence except after giving to the accused a reasonable opportunity of showing cause against such enhancement and while showing cause, the accused may plead for his acquittal or for the reduction of the sentence.
1. Substituted for an appeal to the High Court against the sentence on the ground of its inadequacy by Act 25 of 2005, S. 31(a).
2. Inserted by CrPC (Amendment) Act, 1978, S. 29.
3 Substituted for an appeal to the High Court against the sentence on the ground of its inadequacy by Act 25 of 2005, S. 31(a).
4 Inserted by Act 25 of 2005, S. 31(b).
64. The Central Act has been amended with effect from 23.06.2006. After the amendment the Sessions Court is also conferred with the power of appeal against the sentence on the ground of inadequacy.
60. Though the Central Act has been amended, it is widely stated that State Government has not notified the amendments. The Tamil Nadu Government introduced a Bill ( L.A. BILL No.33 of 2006 dated 2.9.2006) in the Assembly bringing further amendment to the Code. The Bill has been passed and published in the Tamil Nadu Government Gazette Extraordinary, dated 2nd September 2006. The said Bill has been sent to the Government of India for the assent of the President, and so far, no assent has been made by the President of India. The Part III of the Bill, Sl.No.3 to 11 reads as follows:-
3. In Section 20 of the Code of Criminal Procedure, 1973 (hereinafter referred to as Central Act 2 of 1974 the Principal Act,) sub-section (4-A) shall be omitted.
4. In section 24 of the principal Act, in sub-section (6) the Explanation after the proviso shall be omitted.
5. Section 25-A of the Principal Act shall be omitted.
6. Section 54-A of the Principal Act shall be omitted.
7.Chapter XXIA of the Principal Act shall be omitted.
8.Section 291-A of the Principal Act shall be omitted.
9.Section 311-A of the Principal Act shall be omitted.
10. In Section 378 of the Principal Act:-
(i) for sub-section (1) the following sub-section shall be substituted namely:
(1) Save as otherwise provided in sub-section (2) and subject to the provisions of sub-section (3) and (5), the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court or an order of acquitted passed by the Court of Sessions in revision .
(ii) in sub-section (2), for the portion beginning with the words the Central Government may and ending with the words or an order of acquittal passed by the Court of Sessions in revision . The following portion shall be substituted, namely:-
The Central Government may also direct the Public Prosecutor to present an appeal, subject to the provisions of sub-section (3) to the High Court from the order of acquittal .
(iii) in sub-section (3) for the words No appeal to the High Court the words No appeal, shall be substituted.
11. The provisions to sub-section (1) of section 389 of the Principal Act shall be omitted.
61. The Division Bench of this Court in W.P.(MD)No.222 of 2009 (CDJ 2009 MHC 7039) (S.Tamilarasan Vs. State of Tamil Nadu) (Director of Prosecution case), has pressed into service of Section 25-A, which was inserted to the Code of Criminal Procedure as per the Central Act 25/2005, which came into force, on 23.06.2006. Now let us consider the position prior to 23.06.2006.
62. It is well settled that Natural justice is a basic tenet of common law and represents higher procedural principles developed by the courts, which every judicial, quasi-judicial and administrative agency must follow while taking any decision adversely affecting the rights of a private individual, which is commonly a well-recognized principle NO ONE SHOULD BE LEFT WITHOUT ANY REMEDY . For the purpose of attainment of this principle of natural justice, the Indian constitution has enacted a Golden rule which runs throughout the Criminal Procedure Code. In such cases, where no right to appeal is afforded by the Code, it has created a remedy whereby the aggrieved party can approach the Sessions Court or the High Court to seek the exercise its revisional jurisdiction. The provisions providing for revision are contained in Sections 397- 401 of the Code conferring concurrent powers for revision of a case on both the Sessions Court and the High Court. The High Court and the Sessions Court enjoy wide powers with respect to revisional jurisdiction under these provisions.
63. The object of the revisional jurisdiction, unlike appellate jurisdiction, is to confer a sort of supervisory power. The purpose is to rectify miscarriage of justice, Irregularity of procedure, Neglect of proper precaution or Apparent harsh treatment. This revisionall jurisdiction should not be lightly exercised, as it cannot be invoked as a right. Revision is not a right but is only a procedural facility given to a party whereas appeal is the continuation of the proceeding. While considering the legality, propriety or the correctness of a finding or a conclusion, the revising court does not dwell at length upon the facts and the evidence of the case. The Court in revision considers the material only to satisfy itself about the correctness, legality and propriety of the findings, sentence or order and refrains from substituting its own conclusion on an elaborate consideration of evidence.
64. A broader approach has to be taken when the intention of the Legislature is providing procedural facility in securing justice. No one should be left without remedy but there must a provision, either substantive or procedural. This has been emphasised by the Supreme court in Premier Automobile's case ( AIR 1975 SC 2238). It is true that unlike in Civil Procedure Code, providing inherent power to the District courts, Sessions Courts are not vested with inherent power under the Criminal procedure Code. But one should not lose sight that the High Court and the Sessions Court enjoy wide powers with respect to revisional jurisdiction under the provisions contained in the Code.
65. The pronouncement of the Supreme court in Pratap' case, Bachan Singh' case and in Nadhir khan's case ( cited supra) reitrates the revisionary powers of the High court in case of enhancement but the revisionary powers of the Sessions Judge was neither under consideration nor was at all considered. When there is no express prohibiton, we are of the considered view that the revisionary powers of the Sessions Judge is concurrent with that of the High court under sub section (1 ) of section 399 of the Code.
66. In sub-section (1) of S. 399 it is stated that "the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under sub-section (1) of S. 401" therefore, the Sessions Judge can exercise such of those powers which can be exercised by the High Court itself in exercise of its revisional powers.
67. According to Sub-section (1) of Section 401 the High Court, while dealing with a revision, can exercise any of the powers conferred on an appellate Court, by Section 386 of the Code. According to Clause (c) of Section 386 of the Code, the appellate Court can, in an appeal for enhancement of sentence, alter the nature or the extent of the sentence so as to enhance or reduce the same. In view of this provision contained in Section 386, Cr. P.C. it should be held that the High Court, while dealing with a revision, can enhance the sentence. As already stated earlier the powers of a Sessions Judge, while dealing with a revision, are the same as that of the High Court. Since the High Court can enhance the sentence while dealing with the revision, the Sessions Judge can also do so.
68. In our considered view, the failure of the State Government to prefer appeal before the High Court challenging inadequacy of the sentence under Section 377 of the Cr. P.C. will not preclude the jurisdiction of the High Court and Sessions Court to consider the inadequacy of the sentence on the basis of the revision filed by the complainant or the interested party challenging inadequacy of sentence.
69. The contention that the provisions of Section 377 is a bar against a revision seeking enhancement of the sentence by the Sessions Court, is absolutely unsustainable in view of the fact that appellate jurisdiction and the revisional jurisdiction operates on two different fields. Where no right to appeal is afforded by the Code, it has created a remedy whereby the aggrieved party can approach the Sessions Court or the High Court to seek to exercise its revisional jurisdiction.
70. It is also contended that in view of the difference in the wording of Sections 401(1) and 399( 1) of the Cr. P.C, the Sessions Judge is competent to exercise suo motu revisional jurisdiction alone. In Section 401(1) while dealing with the revisional powers of the High Court, it is stated that in the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court can exercise its revisional jurisdiction. But in Section 399(1) providing revisional jurisdiction of the Sessions Judge, the phrase 'otherwise comes to its knowledge' found in Section 401 (1) is absent. Therefore, the Sessions Judge is not entitled to invoke jurisdiction by otherwise comes to his knowledge and the revisional jurisdiction of the Sessions Judge is limited to any proceeding the record of which has been called for by himself.
71. But sub section (3) of section 399 referes 'Any person' moving an application and reads as follows; Where any application for revision is made by or on behalf of any person before the Sessions Judge, the decision of the Sessions Judge thereon in relation to such person shall be final and no further proceeding by way of revision at the instance of such person shall be entertained by the High Court or any other Court.
72. The Judgments of the two Divisional Benches referred above dealt with this phraseology. The judgments of the above referred Divisional Benches are also supportive of the conclusion that the revisional powers of the Sessions Judge is concurrent with that of the High court under sub section (1 ) of section 399 of the Code.
73. It will not be out of context to refer to a situation (one like the case on hand ) where, against a conviction by a magistrate an accused could prefer an appeal to the Sessions judge, and the aggrieved party could prefer a revision to the High court on inadequacy of sentence. If both to be allowed it will be conflicting. To avoid such situation, either appeal has to be withdrawn or revision has to be transferred. If appeal is withdrawn the accused loses an opportunity of one forum. It is not uncommon for the High courts to transfer the revision to the Sessions court. Therefore the Sessions court had/ has the revisional power under section 397 and 399 (1) of the Code.
74. Therefore, we are of the view that the Law as laid down by M.Karpagavinayagam, J, in 2002 (2) LW Crl.549 (Janani Advertising Counsel rep by its Proprietor R.Ramanujam vs Bennet Colmman and Co Ltd rep by its Assistant Manager C.P.Raghavan) still holds the field. In fact the finding therein only stands fortified by the Amendment to the Code by Act 25 of 2005.
75. It is also relevant to refer to the amended Section 372 of the Criminal Procedure Code, which reads as follows:-
"372. No appeal to lie unless otherwise provided. - No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force:
*[Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.]
*Inserted by the Code of Criminal Procedure (Amendment) Act, 2005 (5 of 2009) S.29 (w.e.f. 31-12-2009)"
Therefore, the victim is also given a right to prefer an appeal against acquittal or inadequacy of sentence.
76. Therefore, we answer the question as follows:-
The Court of Sessions has got power to entertain a revision for enhancement of sentence.
77. Before parting, we appreciate the assistance rendered by the learned Senior Counsel Mr.B. SriRamulu as Amicus Curie, who, by his submissions, widened our view and the scope of deliberations and helped us to arrive at an appropriate decision.
78. The Registry is directed to place the matter before the Hon'ble The Chief Justice for obtaining necessary orders for the disposal of the Crl.R.C.Nos.8 and 9 of 2009 and Crl.O.P.No.8025 of 2008.